Thursday, Jun 06 2013
• 10 a.m. (ET)

High Stakes Battle Over Judicial Appointments

A summer battle is brewing. This week, a combative President Obama named three new candidates to the U.S. Court of Appeals for the District of Columbia Circuit. He highlighted the large number of vacancies on the D.C. circuit, whose influence is considered second only to the Supreme Court. Aides say the president is exasperated by Republican efforts to block his appointments. If the nominees are not confirmed quickly, Democrats are threatening to re-write Senate rules — effectively ending the G.O.P.’s ability to filibuster nominees. Critics accuse the president of trying to “pack the court” and warn that changing filibuster rules could backfire on democrats. Diane and her guest discuss the battle over filling judicial vacancies.

Guests

Michael Scherer
White House correspondent for Time magazine.

Stuart Taylor
author and journalist

Nan Aron
president of Alliance for Justice.

Transcript

10:06:56

MS. DIANE REHMThanks for joining us. I'm Diane Rehm. President Obama set the stage for a confrontation with Senate Republicans this week. He nominated a slate of judges to a top appeals court and dared his rivals to block their confirmations. Joining me to talk about how the fight over appointing judges could set the stage for a battle over the filibuster in the Senate: Michael Scherer of Time magazine, Nan Aron of the Alliance for Justice and author and journalist Stuart Taylor.

10:07:32

MS. DIANE REHMYou're welcome to be part of the program. Join us at 800-433-8850. Send an email to drshow@wamu.org. Follow us on Facebook or Twitter. Good morning to all of you.

10:07:50

MR. MICHAEL SCHERERGood morning.

10:07:50

MS. NAN ARONGood morning.

10:07:50

MR. STUART TAYLORGood morning.

10:07:51

REHMGood to have you here. Michael Scherer, who are these nominees? And tell us about the importance of the U.S. Court of Appeals here in D.C.

10:08:03

SCHERERWell, we have a number of courts of appeals all around the country, but the Court of Appeals in D.C. is the primary court for dealing with issues surrounding the federal government. About two-thirds of the cases they hear deal with the federal government whereas other circuit courts is more like one in five cases. About a third of the cases heard here in D.C. at the Court of Appeals specifically have something to do with regulatory questions.

10:08:28

SCHERERYou know, the president will put forward regulations and an industry will challenge the Environmental Protection Agency about whether these coal rules are legal or not. It's the D.C. Court of Appeals who handles those matters, and in many cases, it's the D.C. Court of Appeals that ends up being the final word. So for industries, for people interested in what the federal government does, this court is enormously important -- disproportionately important. It also, at the moment, is disproportionately underpopulated.

10:09:00

SCHERERThere are 11 seats of the D.C. Court of Appeals. But the recently four vacancies, one of those was filled. This week, the president put forward three new nominees, and he did it in an unusual way. Previously, you know, these nominees are sort of put out through press releases individually. But instead, the president had the three people at the Rose Garden, made a big deal of it, basically challenged Republicans in the Senate to continue to block his nominations and put them forward as a package saying, look, I'm putting forward three people.

10:09:36

SCHERERYou have a constitutional responsibility to look at my nominees and to give an up-or-down vote on these nominees. And really, what it's doing is setting up for later this summer a big confrontation in the Senate between the White House and Democrats and Republicans over the idea of blocking the president's nominees -- not just judicial nominees but there's some cabinet-level nominees as well -- by using the filibuster, which is different than just giving him an up-or-down vote. It's saying, we don't want this vote to come to the floor.

10:10:16

REHMAnd Cornelia Pillard or Pillard, Patricia Ann Millett and Robert Wilkins are the three who've been nominated. What do we know about them, Stuart Taylor?

10:10:34

TAYLORI don't know a great deal about them, but I think they're all well qualified. None of them are crazy. I know Nina Pillard a little bit. She's a delightful person, and I think -- so they're all the kind of nominees who, in normal times -- we haven't had normal times with the nominees for many years -- would be presumptively confirmed. The filibuster, in my opinion, is not a good way to run a railroad when it comes to nominees, unless you have somebody that's pretty extreme and -- especially a Supreme Court nominee who's pretty extreme.

10:11:07

TAYLORThe problem is nobody's hands are clean in this matter. President Obama joined in the filibuster Peter Keisler who was a superb Bush nominee to the D.C. Circuit.

10:11:17

REHMAnd he acknowledged that he had done so.

10:11:21

TAYLORRather in passing, he acknowledged it. Others leading the Democrats in the Senate today joined in the filibuster of Miguel Estrada who was a strong nominee. President Obama filibustered -- lead the filibuster of Samuel Alito, now in the Supreme Court. Two of those vacancies on the Supreme Court would not exist if the Democrats hadn't blocked the good Republican nominees.

10:11:43

TAYLORAnd so now the question is can the president find a way to try and wind down what has been a bitter escalating partisan obstructionism by both parties on nominees, or is he going to just escalate the battle and see what happens?

10:11:58

REHMAnd, Nan Aron, you've said the announcement that the president made is the lead up to a "perfect storm" this summer.

10:12:10

ARONI think that's right. I should say to my good colleague Stuart Taylor, it -- you cannot compare these filibusters now with what happened during the Bush administration. There were only a handful of filibusters made by Democratic senators, just a handful, whereas now, we've seen an unprecedented number of filibusters. In fact, almost every nominee to any judicial post around the country has been filibustered.

10:12:45

ARONIt was remarkable that the most recent nominee, Sri Srinivasan, sailed through, and everyone noted that because he did it so easily. But the fact is we have seen momentum build over the past 4 1/2 years. Republicans are eager to block as many of President Obama's judicial nominees as possible, and it's all gonna come to ahead this July with the D.C. Circuit because at the very -- at this very moment, Republicans want to keep their ideological advantage on this D.C. Circuit. And part of what Michael said, it's the most important court of appeals in the country.

10:13:34

REHMNan Aron, she's president of the Alliance for Justice. Stuart Taylor is journalist, author and contributor to the National Journal. Michael Scherer is White House correspondent for Time magazine. Michael, what's at stake here? And what are the implications for President Obama's agenda?

10:14:01

SCHERERRight now, the implications for the agenda are not dire because Sen. Harry Reid, the majority leader in the Senate, has put off this fight until after we get through immigration in the Senate in June. And that was a strategic choice he made because he didn't want to get in the way of other things they're trying to get down in the Senate. But, you know, as we've said here a couple of times now, the D.C. Circuit is incredibly important.

10:14:26

SCHERERJust last year, you know, the D.C. Circuit ruled, in a ruling that was surprising to many, that the longstanding practice of putting recess appointments for cabinet-level positions or confirmable positions, which the president had done in the case of Richard Cordray, the head of the Consumer Financial Protection Bureau, and a number of other people, was not constitutional, was not allowed.

10:14:54

SCHERERAnd that really changes dramatically what the president -- not just this president but what future presidents' powers will be when they face a Congress that -- or a Senate that doesn't want to confirm them. Just to back up, a recess appointment is when you -- a president says, well, because the Senate is on vacation, they can't take up my nominee. And so you kind of use a technicality to sneak your nominee into position for a year or two without actually going through the confirmation process.

10:15:21

REHMStuart, is this purely a power fight?

10:15:26

TAYLORI think it's largely a power fight in this sense. The president says that the D.C. Circuit is understaffed. It has vacancies. And it does have vacancies. It has three vacancies. It also has six senior judges who are not counted as, you know, who kind of make up the slack. I think the main problem the president has is that five of them are Republican appointees, and they are kind of conservative. Therefore, the D.C. Circuit's decisions in recent years have tilted on the conservative side, and judging is inescapably political on some of these issues.

10:15:59

TAYLORIt's not that the judges are playing politics. It's that they cannot divorce their judicial philosophy from their politics even if they tried. Now, is there really a crisis of too many vacancies? Well, the judiciary has something it calls judicial emergencies when they think there's a crisis. There are 32 of them around the country. Twenty-four of them are vacancies that the president has not yet tried to fill.

10:16:26

TAYLORNone of them are on the D.C. Circuit, which I think takes a little bit of air out of the idea that we have to have these nominees for the efficiency of the judiciary because the D.C. Circuit isn't getting its work done. I think it is getting its work done.

10:16:39

REHMHow do you respond to that, Nan?

10:16:42

ARONWell, I would say, first, there is a dire need for more judges on the D.C. Circuit. Sen. Grassley has said, oh, my goodness. We don't need more judges. The workload is low. It's -- it doesn't make sense to put the ninth, 10th and 11th judge on this circuit. It's interesting to see that just a few years ago, when George Bush was naming judges to the D.C. Circuit, Sen. Grassley enthusiastically voted to confirm judges 9, 10 and 11 to that circuit at a time when the workload was even lower than it is now.

10:17:23

ARONSo this is all a pretext. And I think, as you say, it is a power grab. You've got a circuit that is doing its best to undermine President Obama's agenda but, more importantly, undermine environmental, consumer, national security protections that we all take for granted.

10:17:50

REHMAnd yet, Michael Scherer, the Republicans view this as an attempt to steamroll the opposition in Congress.

10:18:01

SCHERERYeah. They've even -- Sen. Grassley has even said it's an attempt to pack the court, which is not probably an accurate portrayal of what it means to fill vacant court seats. You know, to understand most of the rhetoric around court fights, you really have to have some historical context because these fights have been going on for decades, and they keep getting worse. Every president has a harder time getting his nominees put on the federal bench than the president before. And the arguments on both sides keep flipping.

10:18:34

SCHERERSo Grassley makes the argument he didn't make last time, and Democrats make the argument Grassley was making last time. And so much of the rhetoric can be discounted because it isn't really based in reality.

10:18:44

REHMMichael Scherer, White House correspondent for Time magazine. Do join us. I look forward to speaking with you.

10:20:10

SEN. CHARLES GRASSLEYPacking the court because it has issued rulings against the administration is a cynical approach to the judicial branch. So rather than packing the courts in the hopes of obtaining more favorable rulings, our consideration of judicial nominees for the D.C. Circuit should be even more measured.

10:20:30

PRESIDENT BARACK OBAMAI didn't create these seats. I didn't just wake up one day and say, let's add three seats to the District Court of Appeals. These are open seats. And the Constitution demands that I nominate qualified individuals to fill those seats. What I'm doing today is my job. I need the Senate to do its job.

10:20:54

REHMAnd, of course, the first voice you heard was that of Sen. Charles Grassley, Republican, of Iowa. He made that statement on May 23 before the president announced his nominees to the court. And then you heard the president's response. Stuart, there is an argument that the D.C. Court does not have the caseload to justify these appointees. How do you see it?

10:21:33

TAYLORWell, their caseload, just in terms of counting numbers of cases, isn't that overwhelming cases per judge? However, as has been pointed out by people on the president's side, they -- their cases tend to be a lot more complicated than the average case, something that comes out of the Environment Protection Agency that scientists have been generating thousands of pages of reports about for years and years and years.

10:21:55

TAYLORAnd so I, you know, I'm not an expert on the size of the caseload. I am under the impression that the judiciary's own measurement of which of the Circuits are being overwhelmed by their caseload suggest that the D.C. Circuit is not high on that list. But somebody else may know better than I. I do think there is a beautiful symmetry to how the Republicans, the Democrats, just sort of switch sides in terms of the principles they argue in these matters.

10:22:23

TAYLORIt was in 2005 that a young senator said, we need to rise above the ends justify the means mentality, and we need to defend the filibuster. Well, that was Barack Obama. This year, Sen. Grassley will be saying the same thing that now President Obama was saying then. But as to caseload, Nan may know better than I do, but I think the burden of proof has not been sustained either way that this is a big problem or that it's no problem at all.

10:22:52

REHMAnd, Nan, what Sen. Grassley is accusing the Obama administration of doing is trying to pack the court.

10:23:02

ARONRight. Well, just today, two fact-checking outfits repudiated Grassley's claim that the workload is lower, and there's a story in The Washington Post to that effect. But I wanna address something else. This isn't merely tit for tat. What we have seen over time is an effort by Republican presidents to put judges and justices on the court who have a very political bias, who desire to turn the clock back.

10:23:38

ARONLet's just look at the nominees that George W. Bush put up for the D.C. Circuit most recently. One of them, a justice out of California, was found not qualified by a California Judicial Evaluation Commission twice. But more importantly, this nominee who is now a judge on the D.C. Circuit said that the new deal represented a tyranny of socialism and, in fact, talked about programs like Social Security as socialist programs evil in nature.

10:24:16

ARONWell, who would want a judge on the D.C. Circuit making a mockery of Social Security? Another judge on the D.C. Circuit put there by George W. Bush was the author of the Starr Report, which called for President Clinton's impeachment. So you have to compare the judges put on by Republican presidents. For the most part, they are political choices.

10:24:42

ARONThey are in agreement with the president's agenda, and we've seen this going back to President Reagan. Compare that to the supremely qualified nominees put up by President Obama just this week. No one can make the case that they're political.

10:25:03

REHMAll right.

10:25:03

ARONTheir qualifications are impeccable.

10:25:05

REHMAll right. Considering those two rather disparate views, Michael Scherer, will Harry Reid attempt to rewrite Senate rules on filibusters?

10:25:20

SCHERERHe has said very clearly that he is willing to approach that idea. He has not said he is going to do it, and I would wager that he won't do it, in part, because in 2005 when they were in opposite seats and Republican leader Bill Frist was saying he wanted to change filibuster rules, Harry Reid was the top defender, taking to the floor, you know, holding the floor, reading from "Searchlight," his book on his hometown in Nevada, on the floor of the Senate in protest to defend the filibuster and the principle that the Senate has a right to filibuster judicial nominees in specific circumstances.

10:25:59

SCHERERBut I don' think Reid is after that. What we're seeing here are the first moves in what will be a dance that evolves all summer long. And what Harry Reid is trying to do is recreate some version of what Republicans did in the middle of 2005, which is to raise the issue of the blocking of judges and the filibustering of judges, make it an issue for the American people, put political pressure on Republicans -- in 2005, the opposite was the case. They're putting political pressure on Democrats -- to come to the table and strike a deal on this.

10:26:34

SCHERERAnd if it plays out as it did in 2005, what you will have is increasing rhetoric about changing the rules of the Senate and using what's called the nuclear option, which would be a very dramatic move that is, at the last minute, avoided by some sort of a bargain. In 2005, there was something called the Gang of 14. Fourteen senators, mainly from the moderate wings of both parties, got together -- seven from each party -- and agreed on a document that said we will not filibuster judges with the exception of extraordinary circumstances.

10:27:09

SCHERERThey didn't define what that meant. But the upshot was three of the judges who were being filibustered at that time by Democrats were able to get on to the bench, and the issue basically died away. And I think Harry Reid is hoping that that is the outcome that these threats he's making now have.

10:27:26

REHMStuart Taylor, how do you see it?

10:27:28

TAYLORI think that's a good analysis. And I think some kind of compromise where the Republicans confirm one or two of these three and the Democrats are satisfied with that might be the best way to muddle through in these polarized times. The -- a couple of relevant points, I think, that we haven't touched on as to the urgency of the matter, there were two vacancies on the D.C. Circuit for the first 20 months of the president's term before he made a nomination.

10:27:59

TAYLORHe hasn't -- there hasn't been this sense of urgency about filling up the D.C. Circuit until very recently. And I think it was mentioned earlier Sri Srinivasan who was recently confirmed, unanimously, was it, to the D.C. Circuit, an Obama nominee. He -- why did it take so long for him to be confirmed? It wasn't Republicans fighting him. They thought he was pretty moderate.

10:28:21

TAYLORIt was people on the Democratic left who were not enthusiastic about him because he didn't like some of his corporate clients. And so when a president nominates someone who the other party thinks is not so scary, things can move faster.

10:28:34

REHMNan.

10:28:35

ARONWell, it's not just judicial nominees who will be on the floor in July, but it's also going to be a number of cabinet-level officials who have been nominated for positions, like Tom Perez to the Department of Labor, Gina McCarthy to the Environmental Protection Agency, we've got five nominees to the National Labor Relations Board, Richard Cordray, who's been held up for two years, to the Consumer Financial Protection Bureau. So I would agree with Mike.

10:29:04

ARONI'm not sure that most of the Democrats want to do away with the filibuster. But if something doesn't change, if Republicans don't allow these votes to take place, both on the judicial nominees and others, I do think there has to be some change, some rules change so that the Senate can carry out the people's business.

10:29:30

REHMHow long would you say a delay would be acceptable on these three court nominees and on the others you mentioned?

10:29:43

ARONWell, you have to look at everything that's happened so far, and there's no sign that Republicans are going to relent and allow these votes to take place. Gina McCarthy had to answer 1,100 ridiculous questions put forth to her. Other nominees have had hundreds of questions thrown at them. The fact of the matter is the Republican Party would much prefer to -- for government to just stop working.

10:30:15

ARONAnd unless the Senate can do the people's business -- and there's no sign that Mitchell McConnell is inclined to allow these votes to take place -- I'd say they ought to take place or Democrats need to revise the rules.

10:30:31

REHMNan, that's a pretty serious charge you're making, that Republicans would like to see the government just stop working. Would you agree with that, Michael?

10:30:43

SCHERERI wouldn't. I mean, clearly, the Republican Party is less enthusiastic about a large fully functional federal government. They would like a smaller federal government, but I don't think that it follows that they want it to stop working. If you look at the cabinet nominees, a lot of the fights over them are not about the nominees themselves. They're about bigger issues. The case of Gina McCarthy at the EPA, the reason she's being opposed so strenuously by Republicans is not because of her or her character or her record.

10:31:11

SCHERERIt's because the president's made very clear that he is not able to get climate change legislation through Congress this year and that he's going to try and regulate fossil fuels through the Environmental Protection Agency. So Republicans are opposing McCarthy right now because that is the way they have to try and prevent that regulation from coming out. The same can be said for the Consumer Financial Protection Bureau.

10:31:33

SCHERERThe fight is not about Richard Cordray and whether he is a good man or whether he is up for the job. It's that Republicans are upset -- and have been upset for years now -- that that agency was created without clear congressional oversight. They want budgetary control of the agency so they can have some say in how it's enforced. They can let off the pressure on some of the financial services clients who are worried about how that -- how those regulations will be -- will come out.

10:32:02

REHMStuart Taylor, do you see these three D.C. Circuit Court nominees for judgeships being held up for an extraordinary length of time?

10:32:16

TAYLORI think they'll be held up for an extraordinary length of time if the president doesn't reach some compromise with the Republicans in the Senate, you know, one or two instead of three. Otherwise, I think the Republicans will hang tough. And I...

10:32:28

REHMIt's interesting, excuse me, because you said at the outset that all three of these seem to be reasonable nominees. Why then would Republicans hold them up if not for the fact that they wish to be obstructive?

10:32:52

TAYLORWell, wish to be obstructive is one way of describing wish to limit the president's ability to change the ideological shape of the second-most important court in the land. Whichever way...

10:33:01

REHMBut shouldn't he...

10:33:02

TAYLOR...you describe it, I don't -- in other words, I don't think -- I don't doubt that the Republicans' objections here are not really about, oh, this is a bad nominee. They're about how many nominees of the president's are we gonna confirm? You can be for that or against it, but I think that's what's going on.

10:33:19

REHMStuart Taylor of National Journal, and you're listening to "The Diane Rehm Show." Let's now go to the phones, 800-433-8850, first to Cleveland, Ohio. Good morning, Jonathan. You're on the air.

10:33:39

JONATHANGood morning. I wanted to take issue with a comment that was made earlier that the D.C. Circuit has been causing too much trouble for the president's regulatory initiative. The D.C. Circuit upheld the president's most controversial regulatory initiative thus far, the regulation of greenhouse gasses under the Clean Air Act. And the Obama administration's EPA has had a better record defending its regulations before the D.C. Circuit than the Bush EPA did.

10:34:06

REHMMichael.

10:34:07

SCHERERI think those are good points. None of these cases before the D.C. Circuit are easy to keep score on. They're very complex issues about congressional intent, constitutional powers, and it's definitely the case that the president is not batting, you know, zero at the D.C. Circuit. The issue is a longer term one. You know, these appointments last a long time. The tradition has been that the president's in power, especially in the second term, has a huge impact on who sits on federal appellate courts.

10:34:47

SCHERERAnd so it's not just about the fights next month or in six months. It's about five or 10 years from now how -- what role the federal government has in our lives.

10:34:57

REHMNan Aron.

10:34:58

ARONWell, I think it's important for the listener to look at the totality of decisions, and, in fact, this is a circuit that, as Mike said, invalidated the president's three recess appointments. It overturned a rule that would have implemented an important part of Dodd-Frank legislation. It struck down an FDA cigarette warning label regulation. And an environmental regulation that would have controlled air pollution across state lines was invalidated. So, in fact, most of the president's agenda has been blocked by the D.C. Circuit.

10:35:35

REHMStuart.

10:35:36

TAYLORWell, a significant part of it has been, and these issues are all complicated. You know, these are smart, good judges on both sides of every one of these cases, and therefore it's easy to make them a bumper sticker. But I think I need to read a lot of stuff to decide which side I would be on. But a larger context that's important to bear in mind, the president, knowing that his legislative agenda is going nowhere in the House of Representatives, understandably wants to do as much as he can to move policy in his direction through executive action and through administrative agency regulations.

10:36:08

TAYLORThis is precisely where the D.C. Circuit stands as a potential blocking mechanism for what he wants to do. So, naturally, he'd rather have D.C. Circuit judges who are more likely to be sympathetic to his position.

10:36:20

REHMOf course there may be people saying, well, we elected him president. Shouldn't he have the right to appoint judges who share his views about these enormously important issues? Michael.

10:36:39

SCHERERHe certainly has the right to nominate them, but the Constitution gives the Senate the right to review and confirm them. And the issue here we keep coming back to is that the process every four years, every eight years is worse than it was four, eight years earlier. Both parties behave worse. You have more blocks put in procedures. You know, one of the problems the president's had in nominating not just in the D.C. Circuit, but in a number of other district courts is that states with two Republican senators have been holding up just negotiations over who to nominate.

10:37:19

SCHERERSo everybody behaves worse every four years. Nan will say it's because the Republicans are the radicals and the Democrats are not. And, you know, she has a point in that there's definitely different legal philosophies here, but there is yet to be a truce.

10:37:32

REHMMichael Scherer of Time magazine, Nan Aron of the Alliance for Justice, Stuart Taylor of National Journal. More of your calls when we come back. Stay with us.

10:40:05

REHMAnd we're back talking about President Obama's nominees to the D.C. Circuit Court of Appeals, a court that is seen as extremely important, second only to the Supreme Court of the country. Here's an email from Taylor in Houston, Texas, who says, "Packing the court is adding the number of seats to a court in order to sway the majority in your favor. Filling existing seats is not packing the court. Please clarify this terminology for this discussion." Nan Aron.

10:40:49

ARONWell, Taylor's absolutely right. Court packing is adding seats as we saw during FDR's administration. In fact, I would say what Sen. Grassley is doing now, cutting backseats, is more akin to court packing. All President Obama is seeking to do is to fill the judicial vacancies that exist. And in fact, that's his constitutional duty to do that.

10:41:16

REHMAnd here's an email from Anne in Indiana, who says, "As a citizen, I am thoroughly fed up with the continued refusal of the Senate to confirm judges, while I agree Republicans have escalated the problem almost but sadly not quite beyond imagination. Both parties bear responsibility. My message to the Senate is, stop this, do your jobs. I am a voter. I will call your offices. I will vote against you next time unless you start doing your job. I am completely fed up." And there were apparently lots of emails like that.

10:42:07

SCHERERAnd that email is really the best explanation we have for what this current fight is over. Harry Reid and the Democrats are trying to awaken the American people to that frustration. And if more voters like that, that listener begin to contact their members of Congress, then Republicans will begin to feel a political cost to this obstruction. And that is the hope of the president as a reason of -- he had a Rose Garden ceremony.

10:42:33

SCHERERIt's the hope of Harry Reid, who doesn't actually wanna change the filibuster rules, that there is a political groundswell that puts pressure on Republicans and that that sets a stage for a compromise.

10:42:44

REHMNan.

10:42:45

ARONWell, what we've seen is, as we've said, an unprecedented number of filibusters. But what is unusual is that in contrast to the way judges were appointed by Republican presidents, this administration has sought and obtained Republican approval by home state senators for each and every one of its nominees, which means you've got the Republican Party filibustering nominees that Republican senators support. Now, how silly is that to happen?

10:43:21

TAYLORI might like the idea of amending the filibuster rule more than Sen. Reid would, more than President Obama would, because it has gotten to be -- to a point where it seems to me obstruction by senators of both parties is making it hard for the country to get its business done. And that was -- the same will be true in Democrats who are obstructing the next Republican president.

10:43:45

TAYLORAnd so although I don't think Sen. Reid really wants to forfeit the option to obstruct the next Republican president, I can see a good argument for saying, let's just get rid of this obstructionism, and let the chips fall where they may."

10:44:00

REHMAll right. To Indianapolis. Good morning, John. You're on the air.

10:44:05

JOHNGood morning. Thanks for taking my call.

10:44:06

REHMSurely.

10:44:07

JOHNI'm John. And I wanted to mention that it seems like the Democrats are setting up to show that there's a, you know, a sense of obstructionism for the Republicans. And currently the president's argument is that it's his constitutional duty to nominate these people for the court. There are -- even amongst the panel -- some debate on whether or not the D.C. Circuit Court is the one that's most overburden.

10:44:37

JOHNWhy doesn't the president nominate to fill all of the courts, the IRS, the ATF? There are a number of agencies that still don't have that. We've got the NLRB, but what about -- why doesn't he fill all of them? Wouldn't that show an obstruction to them also?

10:44:52

SCHERERWell there's two issues. One is -- it has been a problem for this administration in terms of the time it has taken for him to nominate people to fill seats. And there've been studies done that show there's actually a larger amount of time, even on judicial appointments, that the president has taken to fill those seats. Part of that has to do with private negotiations that happen with home state senators and Republicans being resistant to the nominees the president puts forward.

10:45:16

SCHERERBut I think that is an issue, and it's something the White House would acknowledge privately, and it's something they're working to deal with. The second, though, issue of the broader problem of confirmations beyond courts is one that I think is very present in this entire discussion. This fight that we're going to see this summer is not just about the D.C. Circuit. It's not just about judicial nominations. It's also about the Environmental Protection Agency...

10:45:40

REHMExactly.

10:45:41

SCHERER...and Labor Department.

10:45:42

REHMRight.

10:45:42

SCHERERAnd the president is trying to create this pressure and groundswell to break a lot of it, to sort of open the dam and let some of these things flow through.

10:45:50

REHMA number of you have called to ask us to quantify how many times the filibuster has been used in both the Bush and Obama administrations. Quoting from The New York Times, "There were four filibusters of cabinet-level positions during George W. Bush's two terms and one under President Ronald Reagan." It's not as clear under the Obama administration because some have been filibustered and some just being held up with questions.

10:46:34

REHMNow, the issue about that filibuster is these days, all one has to do is threaten to filibuster and not stand at that podium and read the telephone directory. Nan.

10:46:51

ARONThat's right. A senator can call for a filibuster from his or her office or home.

10:46:58

REHMAnd stay there.

10:46:58

ARONIt's not easy, and stay there. I mean, imagine if during the debate over the gun legislation, senators had to come to the floor of the Senate and explain with families, victims of that horrific incident in Sandy Hook, if they had to explain to people in the Senate why they were voting against that legislation. A talking filibuster, which is what I think were referring to, is incredibly important.

10:47:31

ARONIt forces senators to articulate directly to people what their views are as opposed to calling in from home and simply asking the majority leader to hold off the vote for months and months at a time.

10:47:46

REHMWhen did that form of filibuster, that is, simply calling in your proposed filibuster, when did that become the rule of the Senate? Stuart.

10:48:00

TAYLORI'm not an expert. I think it crept in bit by bit in the '80s and the '90s. But one bit of history, I think, is worth pointing out, it was almost unheard of to filibuster an executive branch nominee, which was a kind of deference that's a little better than with, you know, life-tenured judicial nominees you can make a better case the Congress or the Senate really ought to have to say. It was almost unheard of until the 21st century.

10:48:24

TAYLORAnd I don't think there was ever a filibuster of a judicial nominee even with the possible exception of Justice Fortas when he was nominated to be chief justice. Some called that a filibuster and some don't. Until the Democrat's filibuster, George W. Bush's nominees, some of them, I don't think there had ever been in American history of filibuster of a judicial nominee.

10:48:46

REHMAll right. Let's go to Murray, KY. Good morning, Linda.

10:48:51

LINDAWell, good morning, Diane. Thank you for taking call.

10:48:54

REHMOf course.

10:48:55

LINDAWell, today on NPR, there was a news report that Verizon customers and they said millions of their phone calls were being tracked one week after the bombing in Boston. And that there had been a gag order given so that Verizon could not tell anyone even if they were asked about it. Now, will this D.C. Circuit Court be involved in the suits that are sure to follow?

10:49:35

REHMThat's a really good question. Michael.

10:49:37

SCHERERIt is a good question. This is still a developing story. We don't know the full extent of this, but just the back story is that a legal order was leaked that said that Verizon had to turn over what's called the metadata. It wasn't what the content of phone calls or anything like that. What it was was all the records they have of when a phone is placed, who it is placed to, how long the phone call last.

10:49:59

SCHERERAnd it's basically a large database of numbers to the National Security Agency, which under the law, traditionally, is restricted to only look through that information for national security issues, and, almost always, it's for issues that involve foreign nationals. The permission to do that is actually given by a different court, a secret court called the FISC Court. And what is presumed here, and we're gonna find out more in the coming days, is that this is a legal authority that's actually been in place at least the Patriot Act.

10:50:30

SCHERERIt's not clear when -- after the Sept. 11 attacks, it's not clear when the National Security Agency and the administrations began using it, but it has long time been of fear of privacy and civil rights -- civil liberties advocates. What we really need to know now, though, is we know now the National Security Agency has this database. The question is, how are they using this database? Are they mining this database?

10:50:59

SCHERERHave the courts given them permission to just look through this data to try and find patterns and things like that, which really could come close to the sort of domestic spying that a lot of Americans are very concerned about it.

10:51:11

REHMStuart.

10:51:11

TAYLORI think the history is the Bush administration was doing something like this without clear congressional authority. Then in 2008, after a lot of noise and a lot of attacks on it, Congress, bipartisan majority amended the Foreign Intelligence Surveillance Act to allow very broad types of surveillance, and I think this comes under that rubric. This is not human beings looking at your records. It's computers going through gazillions of records...

10:51:38

REHMTo...

10:51:38

TAYLOR...looking for patterns, who's calling Afghanistan a lot lately and, you know, that sort of thing. And -- but I don't think the -- other than the secret court that Michael mentioned, the Foreign Intelligence Surveillance Court, which is the safeguard of sorts, I don't think the courts are gonna get into this. There was a Supreme Court decision a couple of months ago in the Clapper case that basically said people who think they might have been wiretapped under programs like this have no, you know, can't prove that they've been wiretapped and have no standing to sue.

10:52:09

TAYLORIt's -- the court decision may make it impossible for anybody ever to file a lawsuit on this unless somebody gets prosecuted and then they can try and raise it as their defense, but that's not likely.

10:52:20

SCHERERThe other thing to mention here is that there have been complaints for a number of months now from senators who are aware of this secret program. They don't discuss specifically what it is, saying that they're concerned that the federal government is doing things right now that the American people, if they knew about, would be upset about. Sen. Wyden is one of the people who've been raising these alarm bells. And the issue there is that this is a program that has been approved as far as we know by Congress.

10:52:44

SCHERERSo it's not an issue where the courts would necessarily have to step in. It's -- no one's yet claimed that this is an illegal program. This is an approved program.

10:52:52

ARONAnd I think it was authorize by a judge, so it was done appropriately. But I would say that the breadth and scope of this inquiry by NSA is just staggering. And I certainly hope, at the very least, it prompts members of both the House and Senate to conduct some hearings looking at it.

10:53:14

REHMNan Aron of the Alliance for Justice, and you're listening to "The Diane Rehm Show." Just going back to that issue of potential nominees for other than judicial office. Chuck Hagel was filibustered. John Brennan, CIA director, was filibustered by Rand Paul. Kathleen Sebelius, John Bryson subjected to 60-vote confirmation margins. Jacob Lew of Treasury was given 444 written questions. Gina McCarthy, EPA nominee, is being blocked by Sen. Roy Blunt until he gets answers to questions on levee project.

10:54:10

REHMAnd Thomas Perez, for secretary of labor, is being held up by Sen. David Vitter. And one wonders about how government can continue to operate if the president cannot get his nominees for these very, very important branches, portions of government to go forward. I mean, it just boggles the mind.

10:54:43

SCHERERIt is, and it has gotten worse. But also that lists you just mentioned, a number of those -- the filibuster is the blocking of the nominees -- was a part of the process that ended in their confirmation. And so like the Brennan case, for instance, he was up for -- to be head of the CIA. There were number of senators who wanted more information about his role and a couple of issues, including documents regarding Benghazi.

10:55:03

SCHEREROnce the White House turned over those documents, they really, in the end, had nothing to do with John Brennan specifically. With Brennan was the bargaining chip, the hold was lifted, and he was able to go through. And so the filibuster is used as a negotiating tool to leverage other things a lot. And it's definitely being used more and more over time.

10:55:19

ARONAnd what we're also seeing is -- I mean, we know that Republicans have this insatiable appetite at the moment to obstruct. But what we're also seeing is a growing movement of people across the country who are calling for the Senate to do the people's business. Over 2.5 million people have sent letters to Harry Reid, Mitch McConnell, saying, if you don't begin to act, take votes, confirm nominees, we are calling on you -- we will call on you to revise the Senate rules. So people are not gonna put up with this going forward. And I do think some radical changes will take place in July.

10:56:01

REHMStuart.

10:56:02

TAYLORIt's possible that radical changes will take place, but I doubt it because I don't think the Democrats in the Senate are confident enough that they will retain control of the Senate indefinitely to wanna put themselves under the same no more filibuster approach that they'd love to put the Republicans under if they had that control. So my guess is we'll see a compromise, although a part of me would like to see the filibuster rule at least cut down the size.

10:56:33

TAYLORI'm not quite sure how you do that without just getting rid of it entirely. Somebody ought to think of a way of doing that because the polarized government at some point just stops functioning.

10:56:45

REHMExactly.

10:56:45

TAYLORAnd it's not a matter of whose fault it is.

10:56:47

REHMYeah.

10:56:48

TAYLORIt's a matter of how do you get it to function.

10:56:50

REHMAnd you've got numbers that can go either way depending on who's counting. Stuart Taylor, he's journalist, author and a contributor to the National Journal. Nan Aron, president of the Alliance for Justice. Michael Scherer is White House correspondent for Time magazine. Thank you all so much.

Monday, Mar 30 2015Airstrikes led by Saudi Arabia in Yemen against anti-government forces are raising fears the conflict may spread. A look at how regional powers are aligning and debate over the role of the U.S.

Friday, Mar 27 2015An update on the plane crash in the French Alps. Saudi Arabia launches air strikes against Yemen rebel bases. And President Barack Obama slows U.S. troop withdrawal from Afghanistan. A panel of journalists joins Diane for analysis of the week's top international news stories.

Friday, Mar 27 2015The House passes a budget with no Democratic support. Republican Senator Ted Cruz enters the 2016 presidential race. And the Army charges Sergeant Bowe Bergdahl with desertion. A panel of journalists joins Diane for analysis of the week's top national news stories.